1. When the sufficiency of the evidence is challenged in a criminal case, the standard of
review is whether, after review of all the evidence, viewed in the light most favorable to
the prosecution, the appellate court is convinced that a rational factfinder could have
found the defendant guilty beyond a reasonable doubt.

2. Interpretation of a statute is a question of law over which an appellate court exercises
unlimited review.

3. Under the facts of this case, an unfinished medical center consisting of a roof, a concrete
floor, installed electrical work, and four brick walls with openings for yet-to-be-installed
windows and doors constituted a building under subsection (b) of the burglary statute,
K.S.A. 21-3715, as a matter of law.

4. The use of prior convictions in a criminal history to enhance a defendant's sentence is not
barred by Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348
(2000), where not included in the complaint, presented to the jury, or proved beyond a
reasonable doubt as in the instant case.

Review of the judgment of the Court of Appeals in 37 Kan. App. 2d 555, 154 P.3d 1148
(2007). Appeal
from Sedgwick district court; REBECCA L. PILSHAW, judge. Judgment of the Court of
Appeals affirming the
district court on the limited issues subject to our review is affirmed. Judgment of the district court
on those issues is
affirmed. Opinion filed April 4, 2008.

Matthew J. Edge, of Kansas Appellate Defender Office, argued the cause and
was on the brief for
appellant.

Boyd K. Isherwood, assistant district attorney, argued the cause, and
Nola Tedesco Foulston, district
attorney, and Phill Kline, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

NUSS, J.: Donald Storey was convicted at a bench trial of burglary and theft for entering
an unfinished medical center and taking a band saw. On appeal, Storey primarily argued that
taking property from a structure under construction did not constitute burglary under K.S.A.
21-3715(b). A majority of the Court of Appeals panel affirmed his convictions and sentences.
State v.
Storey, 37 Kan. App. 2d 555, 154 P.3d 1148 (2007). We granted Storey's petition for
review; our
jurisdiction is under K.S.A. 20-3018(b).

The issues on appeal, and this court's accompanying holdings, are as follows:

1. Did Storey's entry into the unfinished medical center with intent to commit a
theft constitute burglary as a matter of law? Yes.

2. Did the district court violate the Sixth and Fourteenth Amendments by imposing
an enhanced sentence based upon prior convictions, without requiring that they be
proven to a jury beyond a reasonable doubt? No.

Accordingly, we affirm the district court and the Court of Appeals.

FACTS

On the night of May 15, 2005, Storey entered the Wesley Medical Center construction site
in Wichita. The structure under construction was approximately 70% complete. Specifically, it
had a roof, a concrete floor, installed electrical work, and four brick walls with openings for
yet-to-be-installed windows and doors. Storey entered the unfinished structure, cut the lock on a
"job
box" inside, and removed a band saw. The police stopped him after he put the saw in his car
trunk. Storey was charged with burglary of a nondwelling in violation of K.S.A. 21-3715(b) and
with misdemeanor theft in violation of K.S.A. 21-3701.

Storey agreed to a bench trial on stipulated facts. The issue at trial was whether an
unfinished medical center was covered by the burglary statute, K.S.A. 21-3715. Storey argued
that he could not be convicted of burglary because no barriers existed to prevent him from
entering. The district court determined that was not a critical factor, noting the "four brick walls,
and a roof, but no doors or windows." The court construed the statute as including unfinished
medical centers, found Storey guilty, and entered convictions on both counts.

The presentence investigation indicated that Storey had a criminal history score of "F"
based upon various prior convictions. These convictions were not included in the complaint, nor
were they part of the stipulated facts at the bench trial. Given Storey's criminal history score, the
district court sentenced him to probation with an underlying sentence of 17 months for the
primary offense of burglary and a concurrent sentence of 6 months for the theft.

Before the Court of Appeals, Storey argued that his entry into an unfinished and
unsecured building is not burglary as proscribed by K.S.A. 21-3715(b) and, therefore, insufficient
evidence existed to support that conviction. The Court of Appeals concluded that based upon a
plain reading of the statute, general legal authorities, and case law from other states, the medical
center qualified as a building. Consequently, the court concluded that sufficient evidence
supported Storey's conviction. Storey, 37 Kan. App. 2d 555.

Storey also argued that the use of his criminal history, without putting the prior
convictions to a jury and proving them beyond a reasonable doubt, increased the maximum
possible penalty for his conviction in violation of Apprendiv. New
Jersey, 530 U.S. 466, 147 L.
Ed. 2d 435, 120 S. Ct. 2348 (2000). Citing State v. Ivory, 273 Kan. 44, 41 P.3d 781
(2002), and
its progeny, the Court of Appeals rejected this claim. We granted Storey's petition for review on
these two issues.

Additional facts will be provided as necessary to the analysis.

ANALYSIS

Issue 1: Storey's entry into the unfinished medical center with intent to commit a theft
constituted
burglary as a matter of law.

Consistent with his position at the Court of Appeals, Storey contends that his entry into an
unfinished, unsecured building with intent to commit a theft does not constitute a burglary under
K.S.A. 21-3715(b) and, therefore, there was insufficient evidence to convict him of that offense.

He recites our typical standard of review:

"'When the sufficiency of the evidence is challenged in a criminal case, the standard
of
review is whether, after review of all the evidence, viewed in the light most favorable to the
prosecution, the appellate court is convinced that a rational factfinder could have found the
defendant guilty beyond a reasonable doubt.' [Citation omitted.]" State v. Kesselring,
279 Kan.
671, 679, 112 P.3d 175 (2005).

We believe that Storey's argument more accurately depends upon interpretation of the
burglary statute, a question of law over which we have unlimited review. See State v.
White, 279
Kan. 326, 332, 109 P.3d 1199 (2005).

The burglary statute, K.S.A. 21-3715, provides in relevant part as follows:

"Burglary is knowingly and without authority entering into or remaining within any:

"(a) Building, manufactured home, mobile home, tent or other structure which is a
dwelling, with intent to commit a felony, theft or sexual battery therein;

"(b) building, manufactured home, mobile home, tent or other
structure which is not a
dwelling, with intent to commit a felony, theft or sexual battery therein." (Emphasis added.)

"Dwelling," as mentioned in subsection (a), is defined in K.S.A. 21-3110(7) as "a building
or portion thereof, a tent, a vehicle or other enclosed space which is used or intended for use as a
human habitation, home or residence." Burglarizing a dwelling under K.S.A. 21-3715(a) is a level
7 person felony. By contrast, burglarizing a nondwelling under subsection (b) is a level 7
nonperson felony. K.S.A. 21-3715.

Storey primarily argues that to qualify as a "building," a structure must be an enclosed
space and have physical barriers to entry. He further argues that the classification of a structure
under the burglary statute depends upon its condition at the time of the alleged crime. In support,
Storey relies upon State v. Moler, 269 Kan. 362, 2 P.3d 773 (2000); State v.
Vinyard, 32 Kan.
App. 2d 39, 78 P.3d 1196 (2003), and State v. Alvis, 30 Kan. App. 2d 889, 53 P.3d
1232 (2002).

In Moler, this court determined that a lean-to did not qualify as an "other
structure" under
K.S.A. 21-3715(b). As Storey points out, in so holding the court stated that the enumerated items
in the burglary statute are

"intended to present a barrier to entry, which in turn provide an enclosed space for the
security of
persons or property which may be contained therein. The lean-to herein is permanently and
entirely open on one side. Its purpose was, apparently, to protect or shield vehicles from weather.
It was not designed for, or intended to, exclude entry of persons from its area, nor was it
capable
of being so utilized. When strictly construed, 'other structure' does not include this lean-to."
(Emphasis added.) 269 Kan. at 369.

By contrast, we conclude that the medical center obviously was "designed for" excluding
entry, was "intended to" exclude entry, and once complete or nearly complete would be "capable
of being so utilized." We observe that the language italicized above, while phrased negatively, is
nevertheless consistent with authorities expressed in Moler for what positively
constituted a
building, e.g.: "'A building is a structure that has capacity for,
and is designed for the habitation
of, man or animals, or the sheltering of property, even though the building is
unfinished. . . .' 13
Am. Jur. 2d, Burglary § 6." (Emphasis added.) 269 Kan. at 365.

The Court of Appeals also found Moler unhelpful to Storey, further
distinguishing it
factually and legally from the instant case:

"The facts there are distinguishable, however, as well as the legal issue involved. In
Moler, the
court dealt with a lean-to that was entirely open on one side. The edifice wascompletely
constructed. In that completed form it had only three walls, a dirt floor, and a roof. Also,
the
court there had to determine whether the lean-to was an 'other structure' as opposed to a building
under subsection (b) of the burglary statute. Here, we have an edifice with four walls, a roof, a
concrete floor, and completed electrical work with windows and doors yet to be installed. Here,
we are concerned with whether the site of the intrusion was a building under the statute and not
whether it was an other structure. Moler offers Storey no support." (Emphasis
added.) 37 Kan.
App. 2d at 559.

The Court of Appeals not only rejected Storey's physical "barrier to entry" and "enclosed
space" arguments by distinguishing Moler, but also by examining the plain language
of the
burglary statute. Citing, inter alia, State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85
(2006), it
found no statutory basis for his arguments:

"[W]e find no support within the wording of the burglary statute for Storey's contention
that a
structure must present a barrier to entry or that it must provide an enclosed space for protection
of persons or property located inside to qualify as a building under the statute. We do note the
legislature defined a dwelling as 'a building or portion thereof, a tent, a vehicle or other
enclosed
space . . .' under K.S.A. 2006 Supp. 21-3110(7). (Emphasis added.) However, it did not similarly
define a non-dwelling building. A plain reading then of our burglary statute suggests that a
building need not have complete enclosure in order to qualify as a building under the statute.

"We note also that the legislature included the word 'any' before the term building.
Significantly, this suggests that it intended that all types of buildings be included under the
statute. K.S.A. 21-3715." 37 Kan. App. 2d at 558.

Consistent with the Court of Appeals' plain reading analysis, the State observes that the
legislature eliminated the common-law requirement that a burglary involve a "breaking." See
Judicial Council Comment, 1968, to K.S.A. 21-3716 (Weeks) ("The technical requirement of
breaking in the former law was [a] historical anomaly and serves no useful purpose."). The State
reasons that the removal of the breaking requirement from the entire statute, together with the
lack of an enclosure requirement for subsection (b) nondwellings as recognized by the Court of
Appeals, severely undercuts Storey's argument that only spaces protected by physical barrier or
enclosed can be burglarized.

In addition to examining the plain statutory language and distinguishing Moler,
the Court
of Appeals also looked at general legal authorities for definitions of "building." It concluded that
"[n]one of these definitions contain any reference to a barrier to entry or a requirement the
structure be completely enclosed." 37 Kan. App. 2d at 558-59.

The Court of Appeals additionally looked to other jurisdictions, observing that all that
have addressed the incomplete structure issue "have determined that such an unfinished structure
is a building under their respective burglary statutes." 37 Kan. App. 2d at 560. The case law on
the issue appears to begin with Clark v. State, 69 Wis. 203, 33 N.W. 436 (1887).
There, the
Wisconsin Supreme Court ruled that a house under construction that had a foundation, walls,
sides, and a roof, but no windows or doors installed, constituted a building under Wisconsin's
burglary statute. That statute provided in pertinent part that a burglary was to break "and enter
. . . any office, shop, or any other building not adjoining or occupied with any
dwelling-house . . .
with intent to commit the crime of larceny or other felony." The Clark court held:

"'Building' . . . does not necessarily mean a structure so far
completed as to be in all respects fit
for the purpose for which it was intended. It doubtless does mean an edifice or structure
erected
upon land, and so far completed that it may be used temporarily or permanently for the
occupation or shelter of man or beast, or for the storage of tools or other personal property for
safe-keeping." (Emphasis added.) 69 Wis. at 210-11.

The most recent entry in the "incomplete structure" jurisprudence appears to be
Smith v.
State, 226 Ga. App. 9, 485 S.E.2d 572 (1997). There, the Georgia Court of Appeals ruled
that a
house under construction without a garage door and a door from the garage to the house was
sufficiently complete to be a building under Georgia's burglary statute. That statute provided in
pertinent part that a "'person commits the offense of burglary when . . . he enters or remains
within the dwelling house of another . . . or . . . any other building.'"
(Emphasis added.) The
Smith court specifically held that a "'building' under the burglary statute includes a
house under
construction which is so far completed as to be capable of providing shelter to people, animals, or
property, such as the house in this case." 226 Ga. App. 9. Among other things, the court cited
Clark, 69 Wis. 203; People v. Angel, 178 App. Div. 2d 419, 577
N.Y.S.2d 116 (1991), appeal
denied 79 N.Y.2d 852; and People v. Gillespie, 344 Ill. 290, 176 N.E. 316
(1931), reh. denied
June 5, 1931.

The Smith court also based its holding upon two additional reasons which are
relevant to
our analysis. First, both that court, and the Court of Appeals in the instant case, looked at the
word placement in their state's burglary statutes. The Smith court noted: "[I]t appears
that the
legislature, by placing the word 'any' before 'building,' intended that the statute include buildings
of whatever kind." 226 Ga. App. at 11. As previously mentioned, our Court of Appeals similarly
observed: "We note also that the legislature included the word 'any' before the term building.
Significantly, this suggests that it intended that all types of buildings be included under the statute.
K.S.A. 21-3715." 37 Kan. App. 2d at 558.

Second, the Smith court found support in related Georgia case law.
"Furthermore, we
note that this Court has affirmed burglary convictions where the house burglarized was under
construction, although the specific issue of whether an unfinished house is a 'building' within the
meaning of the burglary statute was not raised." 226 Ga. App. at 11. Similarly, our Court of
Appeals held in Alvis, 30 Kan. App. 2d 889,that a house under
construction was not a "dwelling"
and therefore defendant's criminal history score required redetermination. It remanded for
classifying defendant's burglary conviction as a nonperson felony, i.e., of a
nondwelling, but
nevertheless a "building" which can be burglarized. 30 Kan. App. 2d at 892.

Chronologically between Clark in 1887 and Smith in 1997 are
Angel in 1991, and
Gillespie in 1931. In Angel, 178 A.D.2d 419, the court held that a house under
construction that
still required installation of the windows and skylight and completion of certain interior work was
a "building" under New York's statute. The burglary and criminal trespass statutory definitions
provided that "'[b]uilding,' in addition to its ordinary meaning, includes any structure
. . . used for
overnight lodging of persons, or used by persons for carrying on business therein." See Penal Law
§ 140.00(2).

In Gillespie, the Illinois court held that a tool shed under construction,
without windows,
doors, and parts of two walls "comes within the language 'other buildings,' as used in the statute
defining burglary." 344 Ill. at 294. The court noted that a "building" under the statute had "been
defined as fabric, structure, or edifice, such as a house, church, shop, or the like, designed for the
habitation of men or animals or for the shelter of property; a structure. 9 Corpus Juris, 684;
Clark
v. State, 69 Wis. 203, 33 N.W. 436; 2 Am. St. Rep. 732." 344 Ill. at 294.

Ultimately, the majority of the Court of Appeals panel in the instant case concluded that
the unfinished medical center constituted a building under K.S.A. 21-3715(b) and sufficient
evidence existed to support Storey's conviction. 37 Kan. App. 2d at 561.

Judge Pierron dissented from the majority's holding. Per Storey's argument, he found
Alvis' rationaleto be controlling, arguing that "basic habitability" of the
incomplete structure was
the key issue. The majority of the panel, however, found Alvis distinguishable. We
agree with the
majority.

In Alvis, the defendant argued that his two prior convictions for burglary and
attempted
burglary should have been classified as nonperson felonies because the houses involved were still
under construction and "not yet suitable for human habitation." 30 Kan. App. 2d at 890. The
court agreed on the burglary conviction, stating that it could not conclude from the inadequate
record whether the house was "capable of human habitation" to purportedly qualify as a dwelling
under K.S.A. 21-3110(7) and in turn to support a burglary conviction under subsection (a). 30
Kan. App. 2d at 892.

The Alvis court therefore held that the trial court erred in classifying Alvis'
burglary
conviction as a person felony, i.e., involving a dwelling. It ordered that "[o]n remand,
the trial
court must classify the burglary conviction as a nonperson felony," i.e., involving a
building that
was not a dwelling, "for the purpose of redetermining Alvis' criminal history score. See K.S.A.
21-3715(b)." 30 Kan. App. 2d at 892. The Court of Appeals in the instant case accurately pointed
out that Alvis did not expressly determine that the house was a "building" under the
burglary
statute. 37 Kan. App. 2d at 560. Given the mandatory language in its remand– the trial
court
"must classify the burglary conviction as a nonperson felony"–it appeared to
simply assume so.
(Emphasis Added.) If this result is supportive of any party's position, it appears to be the State's,
not Storey's.

Finally, Storey's third cited case, State v. Vinyard, 32 Kan. App. 2d 39, was
not addressed
by the Court of Appeals' majority or dissent. He cites Vinyard solely to argue that the
Court of
Appeals "has applied the principle that a structure must present some security barrier in order for
unlawful entry to constitute burglary." The Vinyard court determined that Vinyard's
leaving the
common area of a shopping mall to enter a Dillard's department store within the greater mall
structure during business hours constituted "entering a building" under the aggravated burglary
statute, K.S.A. 21-3716.

The State responds that reliance on Vinyard is misplaced because the medical
center was
not within a greater structure but rather a freestanding unit. We agree. Moreover, Dillard's was a
completed structure; unlike Moler, there was no specific reference to "barrier to
entry." There
was in fact no physical barrier to all entries: Dillard's interior simply opens into the mall's common
area. If this aspect of Vinyard is supportive of any party's position, it appears to be
the State's,
i.e., a structure without a door is nevertheless a building for burglary purposes.

We agree with the holding of the panel majority. A plain reading of our statute, combined
with the weight of other authorities cited, leads to the conclusion that the unfinished medical
center that Storey entered and from which he stole a saw constituted a "building" under K.S.A.
21-3715(b).

Issue 2: The district court did not violate the Sixth and Fourteenth Amendments by
imposing an
enhanced sentence based upon prior convictions, without requiring that they be proven to a jury
beyond a reasonable doubt.

Storey contends that the use of his prior criminal history, without being included in the
complaint, presented to the jury, and proven beyond a reasonable doubt, increased the maximum
possible penalty for his conviction in violation of Apprendi v. New Jersey, 530 U.S.
466, 147 L.
Ed. 2d 435, 120 S. Ct. 2348 (2000).

The constitutionality of the Kansas Sentencing Guidelines Act (KSGA) is a question of
law over which this court exercises unlimited review. State v. Ivory, 273 Kan. 44, 46,
41 P.3d 781
(2002). This court has previously rejected the same challenge, which Storey acknowledges. See
Ivory, 273 Kan. at 46-48 (holding that Apprendi does not apply to a
sentence increased based on
a criminal history score; including prior criminal convictions in KSGA criminal history score is
constitutional); see State v. Lackey, 280 Kan. 190, 120 P.3d 332 (2005), cert.
denied 547 U.S.
1056. We have been provided no persuasive reason to retreat from that position now.

Storey's burglary conviction and the sentence imposed by the district court, and the
decision of the Court of Appeals affirming the conviction and sentence, are affirmed.

JOHNSON, J., dissenting: I respectfully dissent from the majority's holding that an
unfinished building in which the doors and windows have yet to be installed is nevertheless, as a
matter of law, a "building" for purposes of the crime of burglary, under K.S.A. 21-3715(b).

First, I would not rely on the decisions from other states which construe their own
peculiar statutes and prior case law, in light of our own prior decision in State v.
Moler, 269 Kan.
362, 2 P.3d 773 (2000), construing the Kansas burglary statute. I perceive that Moler
construed
our statute to focus on the level of security against theft which a structure provides in determining
whether it is susceptible to a burglary. However, if one were to apply the reasoning from the
foreign opinions quoted by the majority and were to adopt the majority's reliance on our statute's
use of the term "any" building, one might arguably reach a different result than did
Moler with
respect to a three-sided shed. Therefore, without overruling the holding in Moler and
analyzing
the current case with a clean slate, I would find the decisions from other states to be unpersuasive.

The majority cites to the Court of Appeals' attempt to distinguish Moler
whereby that
court found a compelling difference between interpreting what is an "other structure" versus
interpreting what is a "building" as those terms are used in the burglary statute. However, as the
majority notes, Moler was referring to all of the enumerated items in the
burglary statute, which
would include a "building," when it declared that the listed items were "intended to present a
barrier to entry, which in turn provide an enclosed space for the security of persons or property
which may be contained therein." 269 Kan. at 369. Therefore, I find the Court of Appeals' attempt
to distinguish Moler to be ineffectual.

The majority in our opinion relies on the distinction that the three-sided shed in
Moler was
complete and would never be capable of providing security for persons or property, whereas the
unfinished medical center building in this case was designed for and was intended to be capable of
providing such security when completed. However, at the time of the theft, the unfinished
structure did not present a barrier to entry or provide security for the property contained therein.
That point may be best illustrated by the fact that the band saw's owner apparently deemed it
prudent to keep the property in a locked box, rather than to rely on the "security" of the structure.

Carried to the extreme, the majority's designed or intended use touchstone could mean
that the pouring of a concrete floor would be sufficient to make all property left on top of that
floor amenable to a burglary, so long as the building, when completed, will in the future allow for
the securing of property. I do not believe that to be the intent of the burglary statute or the spirit
of the reasoning in Moler. Rather, I would suggest that a structure under construction
must have
progressed to the point where it is objectively reasonable for a property owner to believe that the
structure will provide security for any property left on the premises. In that vein, I would submit
that a rational person would not expect a floor, four walls, and a roof, without doors or windows
having been installed, to provide any reasonable security against the theft of property contained
therein.

Additionally, I disagree with the Court of Appeals' statutory interpretation. Specifically, I
perceive that it fails to grasp the significance of K.S.A. 21-3110(7), defining a dwelling as "a
building or portion thereof, a tent, a vehicle or other enclosed space." (Emphasis
added.) The
operative word in that definition is "other," which connotes that all the items listed prior to the
phrase "or other enclosed space" are deemed to be enclosed spaces. The Court of Appeals
disregarded that definition because we are not dealing with a dwelling in this case.

However, the point is that the legislature obviously considered the term "building" to
mean an enclosed space for purposes of K.S.A. 21-3715(a). The language of K.S.A. 21-3715(b)
is identical to subsection (a), except that "is a dwelling" is replaced with "is not a dwelling." To
say that the legislature intended the meaning of "building" to be different in these two nearly
identically worded sections of the same statute strikes me as contrived, counterintuitive, and
contrary to our well-founded maxim that criminal statutes are to be construed in favor of the
person against whom they are being applied. See State v. Snow, 282 Kan. 323, 340,
144 P.3d 729
(2006) (criminal statutes must be strictly construed in favor of the accused with any reasonable
doubt as to the meaning of the statute decided in favor of the accused). Thus, I would find that
the term "building" means an enclosed space for purposes of the burglary of a nondwelling, as
well as a dwelling.